An overview of the case of minister for immigration and ethnic affairs v teoh 1995

On 2 Septemberpursuant to Article 49, paragraph 1 thereof, the Convention entered into force generally see ibid, p 37, n 1. On 17 December Australia deposited its instrument of ratification of the Convention with the Secretary-General of the United Nations see ibid, p 36, n 1.

An overview of the case of minister for immigration and ethnic affairs v teoh 1995

The ramifications can effectively be summarised as being that: At the time of their marriage, Mrs Teoh had four children, one from her first marriage and three from the de facto relationship. Subsequently, Mr and Mrs Teoh had three children together.

In OctoberMr Teoh applied for and was granted a further temporary entry permit that enabled him to remain in Australia until February Prior to the expiry of the permit, Mr Teoh applied for a grant of resident status.

In Novemberwhilst this application was being processed, Mr Teoh was convicted on six counts of being knowingly concerned in the importation of heroin and on three counts of being in possession of heroin. In JanuaryMr Teoh was notified pursuant to the Migration Act Cth that his application for resident status had been refused on the ground that he could not meet the good character requirement as he had a criminal record.

All the evidence for this Application has been carefully examined, including the claims of Ms Teoh. It is realised that Ms Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted.

However the applicant has committed a very serious crime and failed to meet the character requirements for the granting of Permanent Residency. Mr Teoh sought the review of both the acceptance of the recommendation and the decision to deport. Black CJ found that the existence of CROC emphasised the need for special care to be taken in respect of decisions that separate children from a parent [11] and that the decision-maker had failed to obtain more information in respect of the welfare of the family unit prior to making the decision to refuse the appellant resident status.

The respondent appealed against the decision to the High Court of Australia.

An overview of the case of minister for immigration and ethnic affairs v teoh 1995

Mason CJ, Deane and Toohey JJ accepted as correct the finding of Carr and Lee JJ that the ratification of an international convention can be a basis for the existence of a legitimate expectation and that, in this instance, there had been a want of procedural fairness.

McHugh J dissented on this point and Gaudron J did not rely upon it in her reasons.

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Mason CJ and Deane J in a joint judgment held that: Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.

To require compliance would be to incorporate "the provisions of the unincorporated convention into our municipal law". His Honour found that if the decision-maker had made inquiries of the institution where the children had been placed in care and of the Department of Community Welfare, she would have been in a better position to meet the legitimate expectation that arises from CROC.

Putting to one side the question of whether the doctrine of legitimate expectation "still has a useful role to play", [22] McHugh J held that to find a legitimate expectation in this instance would erroneously expand the doctrine. His Honour made the following points as he considered the issues before him: It seems a strange, almost comic, consequence if procedural fairness requires a decision-maker to inform the person affected that he or she does not intend to apply a rule that the decision-maker cannot be required to apply, has not been asked or given an undertaking to apply, and of which the person affected by the decision had no knowledge.

In respect of the appellant s submission that the sheer number of conventions which Australia has ratified will impose an unrealistic burden on decision-makers, Toohey J commented that: If the result of ratifying an international convention would give rise to a legitimate expectation The consequences for administrative decision-making in this country would be enormous.

Junior counsel for the minister informed the court that Australia is a party to about treaties.

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Only a small percentage of them has been enacted into law. Administrative decision-makers would have to ensure that their decision-making complied with every relevant convention or inform a person affected that they would not be complying with those conventions.

In a novel and far-reaching judgment, her Honour found that it is not necessary to rely upon CROC to establish that the best interests of children should be a primary consideration in the making of administrative decisions.

The fact that the child is an Australian citizen is enough to establish the principle: It is not in anybody s interests to allow such uncertainty to continue.

We state on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law.Aug 13,  · go to attheheels.com to listen to the full audio summary.

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh - [1995] HCA 20

CthCon s 51(xxix) (external affairs pwr) incl pwr to make laws wrt matters affecting Aus' relations w other countries. F/PH: Crimes (Child Sex Tourism) Amendment Act (Cth) made it an offence for Aus citizen/resident to have sex w ppl under 16 [minors] in foreign countries.

Show Summary Details Preview. Whether Australia’s obligations under the Convention on the Rights of the Child—which had not been incorporated into its domestic law—could have created a legitimate expectation at law as the basis for challenging an administrative decision.

The interaction of public law with private law. From Uni Study Guides. Jump to: navigation, search. In Minister for Immigration and Ethnic Affairs v Petrovski, Teoh has been applied in a number of cases. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh - [] HCA 20 - Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (07 April ) - [] HCA 20 (07 April ) (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) - CLR ;.

It would appear from the title of the present paper that the decision of the High Court in Minister for Immigration and Ethnic Affairs v. Teoh has had its day as one of the seminal cases in human rights and Australian public law.

In one respect, following the decision of the Court last year in.

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